Friday, April 29, 2011
Expungement: Protecting Your Record
By: John Early, Esq.
If you have ever applied for a job, college, professional school, the military or a position with any state or federal agency, you probably had to agree to a criminal background check. Why? Several reasons jump out. One would be the inquisitive nature of your potential employer or supervisor. Another would be the organization's concerns about the liability issues involved in allowing a person convicted of a crime into their respective group. Still another would be the organization's intent on using the criminal record as a means of weeding out applicants. Facilitating these reasons is the relative ease of obtaining a background check that shows arrests, charges and dispositions at both the state and federal level. The bottom line is that if you apply, they will ask.
With the inevitability of having to produce a criminal background check, your past is more important than ever. You do not want a poor decision from ten years ago to be the reason a decider passes over your resume, application or the like. Thus, maintaining a clean and clear background is paramount. The easiest way to keep your background spotless is to avoid trouble. However, reality tells us that lapses in judgment are far too common to be completely avoided. Accordingly, you should take the necessary steps to prevent those lapses from becoming a permanent part of your criminal record.
In Georgia, there are three ways to help protect your record after a lapse of judgment: an expungement, a plea under the First Offender Act, and a Pardon and Restoration of Rights. Each has a different impact on your record, and each will be addressed below. First, however, a brief explanation on how a lapse of judgment becomes part of your record will help elucidate how the three means of protecting your record work. In Georgia, if you are arrested for a felony or misdemeanor, as well as a host of lessor offenses, a record of your arrest, along with information sufficient to identify you, is sent to the Georgia Crime Information Center (GCIC). GCIC is a repository for all criminal arrest in Georgia, and once GCIC has your arrest in hand, it creates a file with your name on it. In this file, which is electronically stored, GCIC continues to document every subsequent detail involving your record. Besides the details of the arrest, GCIC records the charges stemming from the arrest, i.e. whether the prosecutor accused you of armed robbery or DUI, the disposition of those charges, i.e. whether the charge resulted in a dismissal, a plea or a conviction. Further, GCIC keeps the record alive and well to tack on any subsequent arrest, charge or dispositions which may occur. In essence, GCIC becomes a sponge that soaks up every detail of your case as it tracks its way through the system. GCIC then disseminates your record to the National Crime Information Center (NCIC) run by the FBI, who in turn disseminates it to state agencies all over the country. Thus, an arrest and conviction in Tifton, GA, for possession of marijuana will show up on your criminal background check regardless of whether it is run in Dalton, GA or Kalamazoo, MI.
How do you keep your arrest from following you to Kalamazoo? The best means is an expungement. An expungement erases your GCIC file, completely deleting the expunged arrest, charge and disposition. Further, if your record or a portion thereof is expunged, GCIC, the arresting agency and the prosecuting agency must destroy all the material involved in your case, including photos, fingerprints, evidence, accusations and indictments. That portion of your record, in effect, vanishes. You can seek an expungement in two situations: (1) if there has been a mistake on your record or (2) if you take the proper measures soon after your arrest. The first situation does not occur too often. GCIC is studious about keeping proper records. However, if there is a mistake on your record, you can move the Superior Court in the county where the alleged mistake occurred to purge the record. Such action will take a petition to the court and a hearing, but if there is a false accusation following you around, the investment is worth it. The second is more applicable to most cases. It is possible to maneuver your case down avenues which will allow you to eventual obtain a complete expungement, erasing the arrest, charge and disposition from your GCIC file. The avenues include Pre-Trial Diversion Programs, having the case dismissed before the prosecutor accuses/indicts the case, and reaching agreements with the prosecutor which expressly allow expungements. However, the time frame for obtaining such relief is brief, and if you have been convicted of an offense, it is important to have counsel expeditiously act to help guide your case on a path towards an expungement. Waiting will result in the chance for an expungement expiring, and a permanent entry into your GCIC record. If your case is successful maneuvered, you can walk away from the experience without having your arrest, charge and disposition follow you for the rest of your life.
The other two means of purging your record are First Offender Plea and Pardon with Restoration of Rights. First Offender is a plea offer from the prosecutor which allows you to plead guilty, but adjudication of guilt is withheld during a period of probation. If you successfully complete the period of probation without violation, then the First Offender statute says you cannot be treated as having a felony conviction. A note is made in your GCIC file to the effect that you have successfully completed First Offender and according to Georgia law, do not have a conviction. Although your record is not expunged under First Offender, the statute does help a person avoid the collateral effects of a felony conviction such as loss of the right to vote or possess, handle and transport a firearm. Whether a person can plea under First Offender is a question for the judge and the prosecutor, but whether you want to plea under First Offender is a question which you will want counsel to help guide you. First Offender does have some onerous rules coupled with it, and before you submit to the terms of First Offender, you will want a full understanding of what is ahead.
The final means is a Pardon and Restoration of Rights. This form of relief is one you request after a conviction and serving the entire sentence. A Pardon with Restoration of Rights is equivalent to the state forgiving you. If you obtain a Pardon, an official notation is made on your GCIC record that the state of Georgia is forgiving you for a past offense. The Pardon, however, stops short of forgetting the offense, which will still remain on your GCIC record. For person convicted of crime which had collateral effects such as losing the right to vote or own a handgun, a Pardon with Restoration of Rights can restore the lost privilege. Pardons and Restorations of Rights are given out by the Georgia Board of Pardon and Paroles. The application processes is available on the Pardon and Paroles website. To obtain a Pardon, the applicant must show he or she has successfully completed his or her sentence, he or she has been an upstanding member of the community, and several other prerequisites.
Today, your criminal record will be part of your application processes. To help protect yourself from a lapse of judgment becoming an indelible addition to your record, you should avail yourself to the means Georgia provides which keep your GCIC file clear. Your record will follow you for life. However, if you successfully use the current Georgia law, a lapse in judgment does not have to. If you have questions, you should speak to an attorney who has experience in criminal law and expungement.